Remember when I told you a few months ago that employers can and should consider requiring that employees make two calls to request FMLA leave? For instance, you might require one call to the supervisor to report the absence, and a second call to Human Resources (or your third party administrator) to request FMLA leave.

All good, right?

Weeeeeeell, let me share a cautionary tale for those who have implemented or are contemplating this two-call requirement, cause one little ‘ol federal court just threw us a curve ball.

The Facts

LaShondra was employed at a local Burger King restaurant, and during her Saturday shift, she told her boss that her mom was in a “life-or-death situation that required surgery,” and that she needed “a week off” to be with her. In response, her supervisor told her to “take all the time” she needed.

She stayed in touch with her boss about her continued absence for a few days, but then was spotty in her communications on several other days the following week. It was not until the following Wednesday that LaShondra asked her supervisor for FMLA leave. In the meantime, however, she had a no-call, no show that same Wednesday and, although the reasons for her termination the following week were unclear, the no-call, no-show surely was a key factor.

Under BK’s FMLA policy, which was outlined in its employee handbook, employees like LaShondra were obligated to contact both their supervisor and human resources to request FMLA leave. In this instance, LaShondra called her supervisor, but did not call HR to request FMLA leave as required in the policy. In defending against LaShondra’s eventual FMLA claims, BK naturally pointed to LaShondra’s failure to comply with both components of the notice requirements of the FMLA policy. Although LaShondra may have alerted her supervisor, she failed to follow the second part of the notice requirement — contacting human resources to request FMLA leave.

How Did This One Turn Out?

Over the past few years, employers have scored victory after victory where they have implemented a two-phone call notice requirement and the employee has, in turn, not followed the procedure.  As I noted in my previous post on this topic, numerous federal appellate courts have upheld the employer’s right to maintain this rigorous notice obligation.

Not this court.

After analyzing the notice provisions of the FMLA regulations (and preamble!) in painstaking detail, the court rejected BK’s argument that LaShondra’s failure to notify human resources precluded her from taking FMLA leave. Specifically, the court held that an employer can maintain a “two call-in” requirement only if this approach applies across the board for all leave requests.  In other words, this court determined that an employer cannot deny FMLA leave based on an FMLA notice requirement that includes more procedural hurdles than what the employer requires for other types of leave.  Moore v. GPS Hospitality Partners (pdf)

Sadly, the Court didn’t stop there, as it found there were unusual circumstances that prohibited LaShondra from following the call-in requirements anyway. Notably, the court found it unreasonable for LaShondra to have read and understood the obligations contained in the FMLA policy since, after all, she had only been given access to the new employee handbook (with the 2.5 page FMLA policy contained therein) two months earlier and she “didn’t have time” to review the policy.  Curiously, the court also appeared concerned that the employee did not receive an actual hard copy of the handbook, though it was readily accessible to LaShondra in an online format.

Insights for Employers

I had a visceral reaction to this decision after I read it, and my knee-jerk reaction was to wad it up and throw it in the garbage can.

Let me explain.

As an initial matter, the court failed to recognize that the FMLA, by its very own bureaucratic terms, demands that employers and employees alike assume a host of somewhat challenging and time-consuming obligations that simply aren’t required in an ordinary sick leave situation. Indeed, the 2009 regulatory changes made clear that these amendments hoisted several additional responsibilities on employees that do not apply in an typical sick leave situation. So, it’s a bunch of hogwash to fault an employer for implementing a process that is modestly different for FMLA leave than other forms of leave.  Moreover, from a practical standpoint, it’s quite common for employers to have several different processes for requesting sick leave vs. PTO vs. vacation vs. STD leave vs. military leave vs. FMLA leave. So, which of these processes should an employer select so as to remain complaint with this court decision? Following this decision leads potentially to absurd results, though we need to give it due consideration (see recommendations below).

Then, there’s the issue of the employee handbook. Ahem, really?  Even though the employee had online access to the employee handbook and two months to acquaint herself with a 2.5 page FMLA policy (which, by the way, would be among the shortest FMLA policies I’ve seen), the court bought her testimony that she “didn’t have time” to review the handbook and FMLA policy prior to the occasion in which she needed it to care for her mother. How long should an employee have to acquaint themselves with a handbook before the employer can start enforcing its provisions? 6 months? 12 months? Perhaps longer if the employee can show they “didn’t have time” to review it? Where is the personal accountability here? Further, can you imagine the lawless workplaces we’d encounter if employers were handcuffed from enforcing reasonable provisions in an employee handbook? This kind of judicial officiating doesn’t operate in reality.

Oh, and I haven’t even yet gotten to the point where I remind you that several other appellate courts have found this two-call policy perfectly appropriate (and which presumably also dealt with differing procedural requirements for FMLA leave).  How much weight do we give this Burger King decision given the weight of these several other, persuasive decisions?

Perhaps not much. But let’s be careful.  This decision reminds us of a few important principles:

  1. Whenever possible, align paid leave procedures with your FMLA procedures. There is much here to suggest that this case could be limited in persuasive value because of its distinguishable facts, but let’s use it for what it’s worth — we’re in a more defensible position when our procedures for requesting leave of any kind align. [I say this with my teeth clenched . . . ]
  2. Managers must have an understanding of their role in the FMLA process.  Although I did not focus much on the managers’ response to LaShondra’s eventual request for FMLA leave, the reaction is not going to win any best practice awards. In fact, their reaction to her request for leave was pretty horrible and made it fairly clear to me that they didn’t have a clue about their responsibilities under the FMLA.  FMLA training is critical. Don’t push it off.
  3. Managers must be able to recognize when an employee’s request is potentially for an FMLA-qualifying reason and to take steps to ensure that neither the supervisor nor the staff interferes with an employee taking leave protected by the law.
  4. On that same note, one of the quirky facts about this case was the FMLA policy’s requirement that a manager, when informed of the need for FMLA leave, was obligated to advise the employee to go to Human Resources to make the FMLA request. Get this kind of stuff out of your FMLA policy! Don’t put responsibility on the manager to respond in this way, cause once they screw it up, you’re on the hook for the breakdown.  (And in the plaintiff’s deposition in her FMLA case, do you really think the employee is going to agree that the manager actually told her to report the absence to HR? Nope.)  Keep the responsibility always on the employee to report the need for FMLA leave. That doesn’t mean that managers are off the hook — they must be trained on how to properly handle an FMLA request (see No. 2 above!), which should include counseling the employee to report the absence per the employer’s absence policy, but the policy should not bind the manager to respond in a certain manner. As we see here, the court took issue with the fact that the FMLA policy required the manager to act in such a manner, but he didn’t do so. This artificial, procedural hurdle created yet another problem for this employer.
  5. This decision gives heartburn to employers that use third-party administrators, as there are very few TPAs that handle ALL the leave administration for an employer. (Another reason why this decision makes no practical sense.) Employers should consider whether leave requests generally should flow through a common location, such as a TPA or Human Resources.